MARCH 7, 2016
2015 APPEARED TO BE a banner year for the Fourteenth Amendment’s public visibility. Though the Reconstruction-era amendment was originally adopted to protect the rights of newly freed slaves, its egalitarian language has demonstrated a much broader reach. Since the 1860s, the amendment’s provisions for equal protections have proved instrumental in securing the rights and equal protection of many citizens and subjects at the margins of the law. And in 2015, the legalization of gay marriage took place on the Fourteenth Amendment’s equal protection grounds, drawing explicitly the comparison often made between racial and sexual justice. Justice Kennedy seemed to be writing for the history books when he claimed that “new dimensions of freedom become apparent to new generations,” and portrayed gay marriage as the culmination of Supreme Court decisions protecting the intimacy of couples of any race, gender or creed.
From “Lawrence v. Texas” (which illegalized sodomy bans) to “Loving v. Virginia” (which illegalized anti-miscegenation laws), Kennedy claimed that the Fourteenth Amendment is clear: he famously wrote that the “dignity and respect” of couples, gay and straight, black and brown and white, warrants protections of the privileges and immunities of US subjects on both the due process and equal protection grounds. Gay marriage, in this understanding, is staged as a kind of emancipation — a movement into freedom.
But this is not the story that emerges from Katherine Franke’s rigorous, historical, and polemical Wedlocked: The Perils of Marriage Equality — How African Americans and Gays Thought Marriage Would Set Them Free. In one telling distinction between her explanation of gay marriage and Kennedy’s more liberatory version, Franke’s book pays little attention to the Fourteenth Amendment. The absence stems first from the Amendment’s largely ancillary relation to the finer print of US marriage law. But second, and more importantly, it emerges from Franke’s pointed critique of Kennedy’s argument that the “dignity and respect” due to gay couples justifies the legal protection of their right to marry. After all, “dignity and respect” are not mentioned in the very amendment around which this newest civil rights expansion is based.
And, Franke would argue, “dignity and respect,” despite the positive-sound of the words, have a troubling history. As a counterpoint to Kennedy’s logic, her book examines the dark side of respectability; it shows how “dignity,” since the Emancipation Proclamation and the drafting of the Civil Rights Amendments, has been used as a subtext by which to police the very rights that marginalized communities have won. Put differently: “dignity and respect” aren’t the precondition of equal personhood — they are, instead, its dangerous limit.
Franke makes the compelling case that to understand the broader context of civil rights movements, one must look outside of the clauses that ensure their legality — and instead critique the assumptions that surround what it means to have rights. It’s a somewhat daring argument to make, to focus on the indebtedness the marriage equality movement owes to previous civil rights movements, given the pitfalls that Franke herself observes. Yet, as Wedlocked reveals in excruciating detail, the story is not a simple tale of a society’s forward march: where the marriage equality movement has often implied that civil rights have progressed in a stately manner from race to sexuality, Franke paints a more nuanced picture. She shows how the logic of marriage equality — the very “dignity and respect” that Kennedy invokes — carries with it a damaged history of racial and sexual exclusion that the marriage movement ignores at its peril.
Wedlocked provides a vital corrective to the common logic that links marriage equality to such notable court cases as Loving on Fourteenth Amendment grounds. For evidence, Franke describes historical moments when the apparent extension of rights in fact limited personal agency and expression. For instance, she examines whether recently freed slaves benefited from the institutionalization of their relationships under US marriage laws. Franke’s answer, in short, is no: the opposite occurred, as love and family were constrained to the relationships that the new law endorsed. So, patriarchal ideas of marriage that mandated what we would now call the “nuclear family” were used by Northern Reconstructionists and Southern courts to persecute black people for intimate arrangements outside of monogamous marriage. And these stories, Franke claims, show how “gaining rights can also, in some cases, even contribute to an intensification of societal hatred and resentment toward previously disenfranchised minorities.” With an intensification of societal hatred, authorities often turned to the tools still available to delegitimize people’s rights, with marriage laws figuring prominently among them.
To show how the law itself became a tool for restricting rights otherwise protected by the highest courts and legislative institutions, Franke’s book progresses in six parts: four historical assessments of the how marriage was used to damage and regulate black communities, and two chapters that ruminate more about contemporary fault lines between marriage, homophobia, and racism. First, Franke examines in the historical record how “freedom by marriage” was a form of coercion: during the Civil War and prior to the Emancipation Proclamation, black men who won freedom by joining the Union Army were encouraging to marry to protect loved ones. But, as Franke shows, more often than not the benefits of marriage proved fungible in practice — wives and children were often left unprotected by the Army forces purportedly fighting on their behalf, with their freedom as spouses and children up for debate by their legal owners. The following three chapters trace various archives and first-person legal accounts. They show how slave marriages haunted the intimate lives of freed people; how public officials intruded in the private lives of black citizens to enforce monogamous intimacy.
Marriage, to the surprise of many, became compulsory — and, to enforce the strict boundaries of marriage, freed men and women were accused of and prosecuted for various intimate and sexual crimes; with accusations ranging from bigamy, to adultery, to fornication for having sex out of wedlock, freed men and women found that they had lost control of their own intimacy. They found themselves bound to sham weddings that had been enforced upon them as slaves, marriages they no longer wanted. Due to the often unclear strictures of divorce law, they were prosecuted for believing that marriages were as simple to exit as to enter. From the archives of these experiences, Franke writes:
Newly freed men and women quickly found that the importance of the marital relation was often “impressed” upon them through arrest and prosecution for violating the state’s criminal laws prohibiting fornication, adultery, and bigamy. […] When their relationships ended and they separated from one another, they did so without going through formal divorce proceedings, unaware that they needed to do so. This often landed them in the county jail when they took up with another partner. Freed people learned the hard way that their marriage rights were a mixed blessing insofar as marriage had strict rules and those rules could be — and were — used by unsympathetic whites to undermine the full emancipation of black people.
Though state laws regulating sexual expression were not written in such a way as to target black people explicitly (indeed, many predated Emancipation), in practice, cases were often prosecuted on a racially exclusive basis, as Franke shows through her in-depth exploration of cases adjudicated in court during and after Reconstruction. Rather than liberating people to form intimate attachments on their own terms, marriage enforced the norming of intimate relationships in order for those relationships to be protected by the law. Rather than binding a persecuted community together, marriage was used to fragment and dismantle the forms of community and kinship that had been formed in the forges of slavery.
At base, then, the apparatus of marriage emerged in its full force as a way for white people to proclaim that black people were not ready to claim the status of equal citizens. The very logic of marriage was stacked against these communities from the beginning on the basis of the “respectability” of people’s intimate lives — based on white assumptions of what “respectability” looked like to begin with. And this process of normalization produced lasting damage in the communities for whom it was thought to promise social and civil inclusion.
From this assembled evidence, Franke shows the durability of marriage as a form of social policing over the century. Moreover, she explores how the legal threats and coercions faced by black people under the marriage regime are already being used to complicate the intimate lives of gay people. In fact, gay couples are already being forced into marriage — by having their domestic partnerships converted into marriages that then fall under far stricter regulation, as happened in California, or by having their marriages “backdated” to the earliest point of cohabitation in the days before marriage equality, to cite a few examples. The compulsory move to marriage shows that the regulations of the state can be used in manifold, and perhaps unexpected ways, to make the lives of gay people now, as for newly freed slaves before, in and out of monogamous relationships more difficult.
When Franke writes that “rights-bearing subjects are almost inevitably shaped by the very rights they bear,” she cuts to the chase of the questions often left unasked by the celebrants of marriage equality: what kind of inclusion are gay couples asking for? What does predicating such inclusion on the “respect” of the straight world mean for the queer communities now faced with only marriage as a recognized rubric for their relationships? It is exactly the equation of “dignity and respect” as a logic for advancing LGBT rights that Wedlock finds immensely questionable. What happens, then, when marriage is established as “the standard by which all other forms of kinship, family, friendship, temporary alliance, and love are both made legible and assigned value”? Franke’s answer: “loving and/or sexual associations that lie outside the formal paling of marriage are evaluated and understood by virtue of their likeness to, or dissimilarity from, marriage.” This is not merely a loss of what Leo Bersani called “lawless homosexuality” — the loss of the bathhouses, cruising sites, and bars that existed as forms of community and kinship ex juris — it is a loss of the forms of support, engagement, affiliation that extralegal queerness had built for itself.
On its face, large components of this argument as I’ve presented it may not seem novel. Indeed, queer critics and activists have, for some time, argued against marriage. There are many examples, such as Michael Warner in The Trouble with Normal or the 2006 manifesto “Beyond Same Sex Marriage,” to name a few. Such critics and documents show in detail how marriage is fundamentally conservative — it is recognized by the state, it involves juridical contracts, it often relies on gendered binaries that are fundamentally anti-queer. In sum, inclusion within the law threatens to erase the very features that many consider foundational to queer life.
Building from these arguments, the project of Wedlock isn’t to explain what queerness looks like. Instead, it asks what becomes of queer kinship, intimacy, community, and counterpublic space — a space born from being at the margins and subordinate — if these are inscribed within state-recognized marriage. It asks what happens to queer people when marriage is the law.
Here is where the novelty of Franke’s book lies. She presents a sustained argument about what marriage as a legal apparatus means for the LGBT community — she shows what to be wary about within that apparatus, and how to make that apparatus work for queer subjects. The most animating question is pragmatic: What laws will be applied when queerness becomes gayness, when the expansive networks of queer community take second place to the privileged importance of what Franke calls the “marriage form”? Marriage is now, after all, the law, and as such, subject to the various ways in which many laws, from the federal, to the state, to the local level, unequally regulate intimate lives. With marriage comes inclusion of the negative variety in that people can be, and indeed are being, prosecuted under these laws. Where some arguments against marriage tend toward the abstract, Franke shows the factual dangers that are already threatening the durability of a queerness as an ethos. These are warnings that the LGBT community would do right to heed.
More than this call to attention, the fundamental contribution of Wedlocked is not its pragmatism or its avoidance of lamenting current trends in LGBT life, to say nothing of the rigor of its scholarship. It poses some serious — and difficult to square — questions about the current state of LGBT politics. These questions are embedded in the structure of Franke’s account of marriage: by reaching back to the ways in which marriage proved dangerous to African Americans from Reconstruction onward, Franke refutes the linear argument of civil rights progress. She does this in a nuanced way, refusing simple analogies between the social policing we might expect with marriage equality for gay people and the experience of black people after their own freedoms, including the freedom to marry, were won.
This is a difficult needle to thread, but a worthy one in the end. By juxtaposing the experience under marriage law for black people with the current marriage movement, Wedlocked illustrates how the argument for marriage relies on “the implicit whiteness of normative homosexuality.” The combination is powerful, and, as Franke observes, “has delivered a racial endowment to the same-sex marriage movement that has most certainly helped the cause of marriage equality, but sometimes at the expense of the rights and interests of both normative and non-normative families of color.” In not acknowledging these relationships, the political arm of the LBGT community threatens to repeat race-based respectability politics that leave “non-married parents as a site of pathology, stigma, and injury to children.” As a result, the architects of marriage equality face a kind of a reckoning. Accordingly, Franke observes:
We need to notice that this right has been won, in part, as a result of arguments made in court that portray families with unmarried lesbian or gay parents as missing a ‘special something’ that only marriage can confer. In a way that should be familiar to the African American community, some lawyers in the same-sex marriage cases have argued that our inability to marry harms our children, and that the most stable and healthy families are ones where the parents can — and do — marry.
In a damning elaboration, she writes:
A conservative agenda that has demonized unmarried African American mothers as “welfare queens” and disparaged African American fathers as “deadbeats” is not undermined, and indeed might be furthered, by supporting marriage rights for same sex couples […] One of the challenges for the supporters of marriage equality is to appreciate the costs to others of same sex couples gaining rights in this context.
This claim, that attaining marriage for same-sex couples could contribute to the stigmatization of others, may for some be a difficult pill to swallow. But one need look no farther than the Moynihan report decades ago for evidence that conservative ideas about family can cast a long, and hurtful, shadow on the communities that dignity is meant to elevate.
Following these critiques, I think a core case that Wedlocked makes is for building political solidarity in spite of the damage done by the logic of dignity. By breaking down the equation between rights and normalcy, this book shows the need for a pathway by which the gay marriage movement might advocate for forms of intimacy that are neither racialized nor circumscribed by what the culture more broadly is willing to grant the mantle of respect. Central to such a thesis is that the shadows surrounding the Fourteenth Amendment’s landmark expansion of civil rights to freed men and women have telling parallels for the ways in which modern politics posits normativity as the next horizon for gay civil rights. Her argument is not to “analogize” the two campaigns, but to put them in a productive “juxtaposition.” It is to fight a conservative logic of normalcy that has been used to police, incarcerate, and marginalize communities of color and sexual others for well over a hundred years. Defining a set of civil rights that acknowledges intimacy and kinship in multiple forms, she makes a compelling case that the logic of inclusion based on normalization must be thoroughly dismantled.
This is why I find Franke’s account and her choice to avoid the Fourteenth Amendment and its egalitarian promises so compelling: it shows the practical threats that endure beyond the decision of the Supreme Court or the passage of a single law. As Franke exquisitely demonstrates, a network of laws shape our social lives, and not all of these are equally visible or enforced. Phrased another way, equality under the law has dangers of its own, and those dangers have precedents we can trace. Since the rise of marriage as a mode of policing black lives across the United States is hardly an historical artifact, it acts as a warning for gay couples of all colors and creeds as they navigate a changing legal landscape with its newly recognized rights and privileges.
Focusing on the problems that arise with citizenship means looking beyond the egalitarian ambitions of the Fourteenth Amendment; it also, implicitly, means critiquing the seemingly steady advance of US social and civic progress. It shows all the work that remains, and calls for activists and advocates to claim that work now. After all, the year that celebrated one political triumph for the lesbian and gay community has been a year in which the unequal treatment of nonwhite US citizens and subjects has been starkly, and violently, visible. Proponents of the “dignity” afforded by expanding marriage rights have looked to black civil rights movements to justify the long arc of historical progress. Wedlocked shows that the story cannot stop there — and that LGBT advocacy for civil rights doesn’t end with the achievement of marriage equality. Progress and justice begin when a community is not defined by policing the borders of its intimate relationships — but by thinking expansively beyond them.
Will Clark is a doctoral candidate in the English Department at UCLA. He is completing a dissertation that examines the literary representation of citizenship and sexuality from the Civil War to the Great Depression. His interests include queer theory, the US novel, and US legal and political history.